Monday, September 30, 2002

Here is a company that uses DNA to figure out your ancestry, as reported in the NY Times. Some politically correct scientists are uneasy about this, because they pretend that genetics has proved that there is no such thing as race. One says, "This test really jumps the gun in reifying groups that don't have scientific support". Not only does DNA analysis find racial markers, $160 and a swab from your inside cheek will quantify your racial background.

If you want to know how Torricelli went from a sure winner to a sure loser in the last two weeks, watch this hour-long investigative report shown on a major New York TV station last week, Sep. 26: Go to FeedRoom, click on Parts 1, 2, and 3.

David Chang is a compelling, believable witness against the Torch. Like the "Final Days" scandals, the Torricelli case was one more Mary Jo Whitewash.

Since the statutory deadline has passed to take Torricelli's name off the ballot and substitute another candidate, the Democrats have filed an emergency petition asking the NJ Supreme Court to disregard the law and allow another Democrat on the ballot.

It is hard to imagine a more groundless request to bypass a routine election law. It might be one thing if he had some sudden illness, or got appointed to some more important job, or some other unforeseen emergency. (The corruption charges were not new.) But Torricelli's decision was based on nothing new but:

a drop in the polls

panic about the party losing the seat

the Republican had based his campaign on Torricelli's record

It is hard to imagine worse reasons. The whole point of having a frozen ballot is so that the candidates have time to educate the voters on the differences between the candidates. If a party can bail out of a loser with a last-minute switcheroo, then it defeats the whole point of having debates between candidates.

I just don't believe the NJ Supreme Court is going to do it. It sounds too much like Florida two years ago, when the Florida supreme court tried to tamper with a federal election by changing the rules after-the-fact for no good reason except to favor the Democrats.

Andy writes:

The Torricelli flame-out is spectatular. But the fix is probably in. New Jersey Supreme Court is probably more liberal than Florida's. Perhaps conservatives should focus more on cleaning up state courts.
McBride has closed with 4 points of Jeb Bush in Florida. Jeb, recently viewed as a shoo-in, may well lose. What conservative accomplishment can he run on? He embraced Big Government with the Model State Emergency Health Powers Act and probably in many other ways also. His fix for education has been vouchers rather than, say, conservative curriculum changes and tough conservative administrators. His daughter seems to have a serious drug problem, something we now hold parents accountable for in housing projects. GWB doesn't seem to give him any boost.
And, of course, Jeb erred in thinking politics was symmetric and therefore that he could influence the Democratic primary (as Davis did to Republicans in California). Bush's intrusion probably gave McBride the key primary win.
Too bad, because Jeb is a much more effective politician than GWB. GWB really should have been held more accountable for losing the US Senate than he was.

John sends this analysis that clearly explains why it is impossible under the law to replace Torricelli on the NJ ballot. It is amazing how the Democrats try to use the courts to manipulate a federal election so soon after they tried and failed in 2000.

I listened to this story on NPR, and the left-wing bias was more than usual. It told the whole Torricelli story from the viewpoint of how the Democrats are trying to retain control of the Senate. In the end, it said that it was up to the NJ Gov. and supreme court to decide who goes on the ballot, and that the Republican deserved to face another candidate because he campaigned so hard against Torricelli.

Update: Actually, the news segment on the web site now is much better than what was broadcast on All Things Considered yesterday. Somebody must have convinced NPR that it was just broadcasting Democratic Party propaganda. But it still quotes political analysts as saying that Torricelli dropping out makes it much easier for Democrats to keep control of the Senate seat, because another strong candidate will replace him on the ballot. As I understand the NJ law, the Democratic Party can only put Torricelli's name on the ballot. Electing any other Democrat would require telling voters to ignore Torricelli's name and write in someone else. Not likely.

Business Week has a story about the upcoming US Supreme Court oral arguments on the Mickey Mouse copyright extension law that extended copyright terms to life plus 70 years. It says:

That issue is whether Congress has the right to extend copyright law if the change does not promote the "progress of science and useful arts" as stated in Article 1, Section 8 of the U.S. Constitution. ...

The case is a crucible, not only for the CTEA, but for all future copyright laws. And Lessig's strategy is both bold and fraught with risk. "What the Supreme Court must answer is whether the intention of copyright is to protect economic value or to promote science and the arts," says Peter Jaszi, a professor of copyright law at American University Law School. If the court overturns the law, it could call into question a host of other unpopular laws, especially the Digital Millennium Copyright Act. But if the law is upheld, it will be a huge setback for digital-rights activists.

John sends this AP story as another example of how a confidential settlement agreement might be contrary to the public interest. WTC 9/11 lawsuits have cornered all the expert data and opinion on what happened, but the courts may prevent it from ever seeing the light of day. See also NY Times story.

Sunday, September 29, 2002

Andy says that various professional organizations are petitioning the US Supreme Court to let them write model laws, copyright them, lobby for their passage, and charge money for anyone who wants a copy. The case is Veeck v. SBCCI. Veeck put some building codes for his area in Texas on the internet, and got sued for copyright infringement. He lost in district court, lost 2-1 on his first appeal, and won 6-4 on his second.

The petition by the copyright lobby is superficially persuasive, but it rests on bad facts, bad economics, bad policy, and bad law. As Andy points out, there are no facts to support the argument, except self-serving claims by SBCCI management that they'd lose money-making opportunities. The bad economics is to think that letting private companies sell legal codes is an efficient way to development good legal codes. The bad policy is to let private, unaccountable, revenue-driven businessmen gain a monopoly on the text of the law. (At one point it brags that one private copyrighted code "has been adopted in all fifty states, Puerto Rico, Guam, and by the federal government.") The bad law is to think that any of this is a basis for reverse an 1888 Sup. Ct. precedent.

Here is one of its silly points:

As a practical matter, throughout our history, even the non-copyrighted portions of statutes and judicial decisions have been available only to lawyers, law schools, and libraries willing to pay the commercial publishers such as West Publishing who actually print and distribute the text of statutes and opinions.

Andy is writing an amicus brief for the case. Because of the similarity to the case involving the AMA/Medicare CPT codes for medical services, I have posted a copy of the medical codes here. As you can see, they are just a bunch of 5-digit numbers that are used to describe billable services, such as "chest x-ray".

Saturday, September 28, 2002

John sends this Mercury News story about the H1-B visa scam. Silicon Valley lobbied for a special immigration law allowing 100s of thousands of engineers from India and China to come to the US on the theory that there were no Americans to fill the jobs. Actually, there were plenty of Americans, but the companies preferred to hire the lower-wage and less mobile foreigners. Now we see the proof, as 10s of thousands of American engineers have been laid off in Silicon Valley, and the H1-B workers still have jobs.

John sends this story about Critical Mass, a monthly bicycle ride in San Francisco. Yesterday's was unusually large, and had thousands of riders. A lot of motorists complain because they don't think that bicycles belong on the road. A lot of people think that the ride is some sort of protest, and that the cyclists are deliberately blocking traffic in order to make some sort of political point. But it is really not. They are just bicycle enthusiasts who want to ride on the streets safely and with other bicyclists. Riding a bicycle on streets full of other cyclists is a lot more enjoyable that trying to ride on streets dominated by motorists.

Friday, September 27, 2002

Idiotic article of the day. Slate's Dahlia Lithwick has a rant against Ashcroft, and his position that the Second Amendment protects individual gun rights. It is thoroughly debunked on by InstaPundit and Volokh. Both of them say that Lithwick has written other good stuff, but I don't know why -- it seems to me that she botches the law every time and these guys have to straighten her out.

The whole Lithwick article has the erroneous premise that Ashcroft thinks that US v. Miller (1939), the leading Supreme Court case on the issue, was wrongly decided. He does not. His position is very similar to that of the recent US v. Emerson case, which completely accepted US v. Miller as good law. Ashcroft is merely accepting what most legal scholars have said for the last 200 years. It is not a radical position. Then she is puzzled as to why Ashcroft has not acted to overturn gun laws. She doesn't want him to overturn any gun laws, but she is puzzled anyway. Then she answers her own question by noting that Ashcroft testified in his confirmation hearings that he is willing to abide by gun control laws even if he personally disagrees with them. Finally, she thinks that this is proof that Ashcroft lied during the hearings, and should have been given a polygraph.

Lithwick's level of idiocy is only found among lawyers. Ashcroft is not seeking to reverse laws because his job as Attorney General is to uphold laws. He explained that rather well during his confirmation hearings, and spoke the obvious truth. Leftists are always trying to accuse right-wings of hypocrisy. When they cannot find any, they invent it. When someone like Ashcroft does what he is supposed to do, and stands firmly on his principles, it drives them bonkers.

Her mindless antagonism towards Ashcroft is rooted in politics, of course. She says, "what's to stop him from instituting a DOJ policy barring minors from access to abortions, because he believes that Roe v. Wade was also wrongly decided?". Guess what -- everybody thinks that Roe v. Wade was wrongly decided. Even left-wing pro-abortion law profs do not defend the logic of Roe v. Wade and wish that abortion could have been legalized by some other means. But as Ashcroft has also explained, it is also settled law and the Attorney General has to accept it.

Here is a NY Times attack on Bush's latest controversial judge nominee because he thinks that Roe v. Wade was wrongly decided. I'd like to cross-examine the political hit men who pretend that Roe v. Wade was correctly decided, and make them defend the reasoning. The vast majority of the American public has misunderstandings about just what Roe v. Wade decided.

John sends this article about the upcoming Supreme Court oral arguments over copyright extension. Cringely supports civil disobedience against extreme copyright laws like the DMCA. More info at Eldred v. Ashcroft. It would be nice if the Supreme Court said that there are some limits to what copyright law can do, because Congress is planning some even worse copyright laws. Here is a new LA Times article about Lessig and the copyright fight. Again, Lessig tries to disassociate himself from his conservative past, but he says things like ''Everything that Washington proposes gets worse than the thing they did before''. I think that Lessig really wants to be a conservative, but it is socially unacceptable among law profs for him to admit it.

Wednesday, September 25, 2002

John wrote:

Roger's blog has lots of chatter about the Toogood case, but he fails to mention its most interesting feature: The Toogoods are Travelers, i.e., they belong to an Irish clan of itinerant scam-artists similar to Gypsies. See South Bend Tribune, Sun Times, MSNBC.

I mention that under Sunday, below. Perhaps the whole reason she was videotaped was because of ethnic profiling. John's links tell about completely unrelated crimes by other Travelers. O'Reilly and others have tried to make a big deal about it, and argued that Toogood should be presumed guilty because of her ethnicity.

All these arguments just make me more convinced that she is the unfair victim of a witchhunt. What if someone made similar arguments about blacks or some other ethnic group? Since when do Irish Travelers have fewer rights than other citizens?

Suppose the Toogoods are indeed guilty of shoplifting or similar offenses. The statutory penalties for shoplifting do not include confiscating the defendants' kids.

O'Reilly had an Indiana Superior Court judge on TV today, and he said that he didn't have the facts, but he would take away all three kids anyway. I saw a prosecutor on another show argue that the Toogood felony battery charge would not get the leniency that is usually given to a first-time offender because a child is involved and Mrs. Toogood probably beats her kids all the time. I thought that O'Reilly was bordering on libel. He claims to have proof that the Toogoods are involved in some sort of criminal enterprise.

This sloppy reasoning is shocking. Felony battery is a charge that would usually only occur if the kids had broken bones from a beating, or something like that. There is no evidence that the Toogood kid was harmed at all, or that there were any other incidents. There is no reason to believe that putting the kids in a foster home will be a better situation for the kids. If I were on the Toogood jury, I wouldn't hesitate to acquit. There is no proof of any crime against the kids.

John writes:

I didn't see O'Reilly on this, but he is absolutely right: the Toogoods are involved in some sort of criminal enterprise. The Travelers are a criminal enterprise, like the Mafia or al Qaeda.

I agree with O'Reilly that the Toogoods' membership in a criminal enterprise should be taken into account by the judge in determining the fate of the little girl.

In addition to their membership in a criminal enterprise, there is plenty of evidence of individual guilt by the Toogoods in a variety of crimes. I circulated a news story on this; didn't anybody read it?

I don't follow this argument. Accused murderers do not even lose their kids. Maybe 20% of black men are convicted felons, and yet no one says that they are ineligible to raise kids.

Our whole legal system is based on proving guilt in court, and punishing the guilty based on prior statutes. Taking someone's kid away is not a punishment for anything.

They only take kids away when there is extreme abuse, and some court finds it to be in the best interests of the child. Even still, most kids who are put into foster homes because of child abuse end up getting abused more in the foster homes.

The accusations against the Travelers just aren't relevant to the child custody issue. Even if they are all true, they don't make the Toogoods unfit parents under any standards that are normally applied in our society.

The Toogoods are being made scapegoats because of presumptions and stereotypes about what kind of people they are. Yes, there were various allegations of petty crimes. None involved violence or child abuse or neglect.

Andy writes:

Concerning Toogood, I find the position of O'Reilly, John and the articles he cited to be irrational and offensive. Toogood is linked to a poor ethnic group, accused of irrelevant crimes, etc., all for the purpose of taking her little girl away from her. Roger rebuts all this well.

If government can take someone's kid away from them based on politically correct racial smears or allegations of irrelevant crimes, and conservatives don't oppose that, then it looks grim on other issues concerning defense of the family. Looks like Hillary's view of family has prevailed.

There is no parental autonomy for anyone if Toogood's family can be dismantled so easily.

Gumma writes, "Did you all see the video? I don't think it proved anything."

Yes. I think it is clear that the Mom spanked the kid. The other assertions that the Mom looked around to see if anyone was watching; that the Mom punched the girl in the face with a closed fist; that the Mom violently shook the girl; that the Mom was angry or out of control; and that the sister witnessed the events; are all not provable from the tape, and probably not true. The Mom's admissions after turning herself in do not make me think that any of these are any more likely to be true.

John writes:

Membership in a criminal enterprise is a crime, in and of itself, even if all members of the enterprise belong to the same ethnic group.

I did not say that the Toogoods should lose their kids based solely on the conduct shown on the video. I did not say the conduct shown on the video was sufficiently abusive to warrant taking away the kids.

But the incident opens a window into the Toogoods' lifestyle. That lifestyle raises serious questions that should be looked into.

I see no evidence the Toogoods are being punished for incorrect or inappropriate stereotypes. In this case, the stereotypes are all too true. "What kind of people they are" is indeed the issue.

I think it could well be child abuse to raise a child in a family where the "family business" is a criminal enterprise.

At least in the Mafia, if "The Godfather" and "The Sopranos" can be believed, children are generally insulated from the "business" until they are mature adults.

In Traveler and Gypsy families, children are groomed for a criminal life from infancy and begin their lives of crime as young children. What could be more abusive than that?

Again, we are not talking about an ethnic group or irrelevant crimes. This extended family is a corrupt criminal enterprise.

I thought "politically correct" meant to oppose profiling and to play the race card. That is what Andy is doing - attacking the rational profiling of a crime family as a "racial smear."

Here is another current example of a perverted family where a child was being raised for a life of crime. Society has properly intervened to rescue the child.

No. Mafia members are defined by organized crime activities. Travelers are a cohesive ethnic group that dates back 100s of years. A child of a Traveler is a Traveler. They are like Gypsies. Sure, a lot of Gypsies are crooks, but crooked activities do not define Gypsies.

What kind of criminal enterprise? The Mafia is an enterprise because members have to pay kickbacks to the bosses. Are there Travelers bosses who make all the others pay money? Not that I've heard of.

Where is John going with this? You want gubmnt authorities to go around looking into various ethnic lifestyles, and seizing the kids when you don't approve?

So they are being punished for matching the stereotypes? Your argument is essentially: They look like white trash; they act like white trash; big media investigation has shown that they really are white trash; so take their kids away.

Here are some other things someone might disapprove of:

Parents smoke cigarettes.

Parents are couch potatoes who watch TV all the time.

Kids raised by a single parent.

Parent is on parole for shoplifting.

Parents do not speak English at home.

Parent gets drunk on a regular basis.

Parents are atheists who sneer at anything religious.

Parents belong to some goofy sect like Pentecostalists.

Parent is a tennis fanatic who makes the kid take many hours of lessons.

Parents smoke marijuana.

Parents have eccentric sexual practices.

Parents cheer news of suicide bombers.

Parents who use corporal punishment.

Parents who are strict vegans.

Parent who is a convicted felon.

I could go on and on. For each of these, there are people whose disapproval exceeds your disapproval of the Travelers. Do you want to take all their kids away? Who is going to be left to raise the kids?

It is possible that the store spied on Toogood because of ethnic profiling -- they spotted her as a Traveler and were suspicious that she was going to cheat the store. If so, no one has objected to that (altho a store that went around videotaping black customers might get some criticism). But I object to this presumption that they are unfit parents because they are Travelers. It would be easier to make the case that blacks are unfit parents.

Andy writes:

Mrs. Toogood's child should not be taken from her and raised by the State. Sure, the State is piling on charges against Mrs. Toogood -- that's SOP (standard operating procedure). Now they claim she's given false addresses. As though that's justification for taking someone's child from them!

I'm sure most people would disagree with the Toogoods about how they raise children. Most people wouldn't use a "stun gun" to scare a child, which has been alleged against someone in Toogood's family (other than her). But the child is hers, and she'll do a better job raising her than the State. Already the State has given the kid the flu and probably caused severe psychological problems. Do you really think the kid is better off now? I don't.

Like Roger, I see this as an important and superb opportunity to criticize State interference with a family. So much for all that "family values" talk! What meaning is there to "family values" if the State can take an infant [toddler] from her mother?

Consider patent No. 6,362,718 for a " Motionless Electromagnetic Generator," granted in March of this year. The invention provides " a magnetic generator [in] which a need for an external power source during operation is eliminated." That is to say, once you start it up with a battery, it will keep on running and outputting power long after the battery is disconnected. Limitless power for next to nothing!

NPR just had a segment trashing the Wright brothers for enforcing their airplane patents against a rival who did similar work about 5 years later, and quoting folks who said that patents have been bad for the airplane industry and bad for a lot of other industries as well. One source was the book: Unlocking the Sky: The Race to Invent the Airplane by Seth Shulman.

This NY Times article claims that people are starting to pay for online music. But the for-pay services are crippled. There should be some standard arrangement for paying royalties to the artists. But letting the music labels conspire to form monopolistic online music services doesn't make any sense to me.

SANTA CRUZ, Calif. - Upholding its famously liberal leanings, the Santa Cruz City Council has became one of the first municipal bodies in the nation to pass a resolution denouncing any pending military strike on Iraq led by U.S. forces.

Tuesday's 6-0 council vote even outpaced its liberal neighbor, Berkeley. Last year, Berkeley passed a resolution condemning the bombing of Afghanistan, but the city has yet to address the intensifying situation in Iraq.

Santa Cruz Congressman Sam Farr says that e-mail from his constituents is running more than 500 to 1 against a U.S. invasion.

Meanwhile, a Berkeley study just found that teenagers are more conservative on issues such as school prayer and abortion than their parents.

Tuesday, September 24, 2002

John writes:

What is AAPS doing to support Ashcroft's fight against euthanasia in Oregon? Today, Ashcroft filed a brief in the 9th Circuit in the case of Oregon v. Ashcroft. Is it too late for any more amicus briefs?
Is AAPS involved? I can think of no more worthy project for AAPS than to argue the point that assisted suicide is never, under any conceivable circumstance, a legitimate medical purpose.

Andy writes:

Bigger issues are at stake in the case like the federal takeover of medicine, which AAPS opposes. Also, on a cursory review of the district court opinion, my impression was that Ashcroft's subordinates were mishandling the case. They didn't argue that the medicinal marijuana Supreme Court decision applied, for example.

John writes:

All the more reason for AAPS to weigh in here! The district court opinion, was particularly outrageous, and deserves to be rebuked for that reason alone, in addition to being wrong on the substantive merits of the case.

The opinion (by Robert E. Jones, who was appointed by George Bush I) was far more out of line than the Newdow (Pledge of Allegiance) decision. While the Pledge opinion was actually a careful and plausible application of Supreme Court precedent, the Oregon v. Ashcroft opinion was liberal judicial activism dressed up in the phony mantle of state's rights (which are irrelevant here).

I fully agree that the "federal takeover of medicine" is an important issue. However, concern about that important issue is, as I said, "misplaced" when raised in opposition to the Ashcroft rule at issue here. The Ashcroft rule does not in any way promote the "federal takeover of medicine" for the simple reason that assisted suicide is not medicine.

We are not talking about "intrastate use" of drugs; we are talking about interstate commerce in drugs, which is clearly subject to federal regulation.

A state is, indeed, free to legalize the "intrastate use" of drugs, even for assisted suicide, by an unlicensed person (such as Jack Kevorkian) who operates entirely outside the medical system.

But a state is not free to redefine "medicine" to embrace assisted suicide and thereby force the federal government to endorse, subsidize, and respect that practice.

Andy writes:

Ashcroft's approach to Oregon's assisted suicide law is to expand federal power. Ashcroft could exclude participating doctors from Medicare or Medicaid, or take other meaningful actions such as defunding hospitals and ending federal perks for other participants. But Ashcroft hasn't cut off the money; instead his approach is to expand federal control over medicine and its definition. I cannot agree. Nor would AAPS.

John wrote, "This is comparable to the Defense of Marriage Act, which says that for all federal purposes, the term "spouse" can only mean a person of the opposite sex. Likewise, Ashcroft is saying that for all federal purposes, assisted suicide can never be a legitimate medical purpose."

Ashcroft, according to the court, is doing more than that. He is threatening prosecution.

I do agree that the Defense of Marriage Act is analogous, though. It represents an equally futile defense against powerful movements in the states. Politics is local, and efforts are best devoted to that level. Anything Ashcroft does in opposition to assisted-suicide is short-term at best, as the next Democratic Administration will simply undo it. And it might also use the DEA and FDA to cause more havoc, as in banning capital punishment based on Ashcroft's logic.

I don't see how Ashcroft is expanding federal power. This is about legitimate uses for DEA schedule II drugs like morphine. The law on this has been unchanged since 1970. Physicians cannot just prescribe morphine whenever they please; they are subject to DEA regulations.

Maybe you think that the Controlled Substances Act of 1970 was an expansion of federal power, or that heroin should be freely available over the counter. If so, you won't persuade anyone. Otherwise, Ashcroft is just applying existing law from 1970. For Ashcroft to take some non-statutory economic retaliation for assisting suicide would be an expansion of federal power. So Andy's position makes no sense to me.

The prosecution (that Ashcroft threatens) would be for misusing DEA schedule II drugs. If the physician were merely assisting suicide, it would be a state matter.

If some future administration bans DEA-licensed physicians from administering lethal injection of schedule II controlled substances as part of capital punishment, then I'll agree with it.

John writes:

We have a federal system with government and politics at both the state and national levels. Just because assisted suicide can be fought at the state level is no reason not to fight it at the federal level as well.

Ashcroft's action is really much narrower than that. He only wants to say that a physician cannot use a DEA license to get schedule II drugs for the purpose of killing someone.

If Oregon wants to allow assisted suicide, that's Oregon's business. But there is a federal distribution system for schedule II drugs that Congress has statutorily restricted to a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. Assisted suicide has never been considered a legitimate medical purpose. Ashcroft is just applying this law.

Andy writes:

John and Roger make good points. They've persuaded me that Ashcroft can and should revoke DEA licenses of suicide docs using controlled drugs.

I'm not keen on federal prosecutions of doctors who comply with state law, however. Nor do I support the overall principle of the federal govt expanding its power over controlled drugs to trump state laws governing use. At stake is far more than the little-used Oregon suicide law; capital punishment and perhaps even abortion drugs are at issue. The FDA and DEA could prohibit the use of drugs for execution under Ashcroft's logic.

It is folly to support expansions in federal power simply because Bush is there now. Before long, a liberal will likely be there. We are better off opposing federal power.

Roger writes, "Ashcroft's action is really much narrower than that. He only wants to say that a physician cannot use a DEA license to get schedule II
drugs for the purpose of killing someone."

That's debatable. Ashcroft runs DOJ, and it raids and prosecutes people. Roger need look no further than the recent Santa Cruz raid.

Confusing computer message of the day. I just installed Service Pack 3 for Msft Windows 2000. It put an annoying "Set Program Access and Default" item in the Start menu. One option is to add or remove OS components. The instructions say: "To add or remove a component, click the checkbox."

The latest on Mrs. Toogood is that she was not allowed to see her kid today as scheduled, because the kid supposedly has the flu. Also, her physician took some naked pictures of the kid last week in order to document the lack of bruises, and now the physician is being investigated for child pornography.

This witchhunt gets wackier and wackier. The prosecutors should apologize to Mrs. Toogood and drop the charges.

Monday, September 23, 2002

A Texas gas company was found guilty by federal energy regulators (FERC) of "the unlawful exercise of market power" by charging California too much for gas during the energy crisis of a couple of years ago.

Gov. Davis will probably argue that this proves that he was not responsible for the mess. But I think it proves that California was being run by incompetent crooks. As the article says, the California/Texas gas price differential was more than 50 times the usual during the crisis. Obviously the market was broken, and the so-called deregulation was really a re-regulation in which suppliers discovered that, under the rules, they could sometimes make more money by limiting supply. The rules should never have been designed that way, and Gov. Davis should have changed them when these flaws were discovered.

AFAIK, Bill Simon doesn't say what he would have done about the energy crisis.

Sunday, September 22, 2002

Bob reports that a small area of the brain appears to be responsible for near-death and out-of-body experiences, according to research published in Nature.

A tiny part of the brain behind the right ear can cause out-of-body experiences and could explain the many stories of near-death patients who say they have looked down at their own bodies, a team of Swiss scientists announced yesterday.

While treating a woman with epilepsy, the researchers discovered that every time they applied a mild electrical current to part of the woman's brain she felt as if she were floating near the ceiling, looking down on her own body like a soul freed of its earthly bonds.

The results were published in today's issue of the journal Nature.

Sounds like Nature has gone goofy. This was just one patient who reported out-of-body feelings. Here in Santa Cruz, we have people who can be induced to report out-of-body experiences if you just waive a magnet over their heads. It doesn't prove anything.

Madelyn Gorman Toogood told throngs of reporters she made a mistake and she apologizes for it. ... "Nobody has the right to strike their child," Toogood said. "I shouldn't have did it. I'm paying for it and my entire family is paying for it over my mistake."

She will say or do anything to get her kids back. She has to suck up to the CPS do-gooder types or they will make her life hell. This means admitting wrongdoing, claiming that it was an aberration, adopting an anti-spanking philosophy, and begging for forgiveness. If she claims that she is innocent, then the CPS types will want to punish her for failing to submit to their authority. In their minds, they have already convicted her, and if she doesn't acknowledge that, then she is an unfit mother. According to them, anyway.

If Toogood were to say that she did nothing wrong, then the system would be more likely to leave her kid in foster care. They'd say that she showed no remorse, and is therefore likely to continue to abuse the kid.

I was on a KGO radio (SF CA 810AM) call-in show defending Toogood yesterday, with host Shann (pronounced Shawn) Nix.

Shann: We'll talk to Roger in Santa Cruz.

Roger: Hello, Shann. I think you're wrong about this. First of all, I've seen the video. It does not show any slapping or any punching. It shows Mrs. Toogood making some arm motions in the car, but you can't tell that any force is being applied to the child. I think that it is going to turn out that the child is completely healthy, has no bruises, no harm, no anything. This is a big media hysteria witchhunt against this poor woman, and I think it is unjustified.

Shann: Are you her lawyer?

Roger: No, no.

Shann: Because I think that is exactly what her lawyer is going to say. You know what, I will say this. The child has been checked, the child is fine. Ok, that much of what you're saying is accurate. I would suggest that this will be exactly the tack that her lawyers will take. But let me ask you this. You sound like an intelligent guy. You really think that she wasn't hitting that kid?

Roger: From the video, I think she spanked the kid initially. There is a second part of the video after the child goes in the car seat -- It kind of looks like she is punching the kid and then shaking the kid. At one point it looks like she is punching the kid in the face with a closed fist. But I just don't think that she is really doing that.

Shann: Why not?

Roger: You can't see the child's face in that video. All you see is some gestures.

Shann: Roger, let me ask you this. What is she doing, if she is not hitting the kid?

Roger: I think she is just maybe tapping the kid on the head.

Shann: You have to be kidding me! Come on! Man, you've got to do better than that. Tapping the child on the head? You are her lawyer. You are, really.

Roger: No, no. You think that spanking is evil or something.

Shann: Yes.

Roger: You say the research shows that spanking is bad. I've looked at that research, and it doesn't. I tell you, what the research shows is that if you group all spankers and group that against all non-spankers, then yeah, the non-spanked kids do better than the spanked kids.

Shann: Ok.

Roger: But it is only because in the spanked kids you include the people who are being severely abused. If you take out the kids who are being severely abused, and compare the kids who are not spanked to the kids who are being only mildly occasionally spanked for reasonable disciplinary purposes, then there's no difference that anybody has found in the research.

Shann: Roger, the bottom line is that corporal punishment is associated with risks for children. We know that. It is a fact. It's over. Although I appreciate your hair-splitting and your call, it's done. This question has been settled.

Bob says that Mrs. Toogood is not defensible, because she is part of the Irish Travelers, a group known for shoplifting and other petty crimes, and maybe she was angry at her child for not helping to defraud the store. She deserves to lose her kid if she makes the kid part of a criminal enterprise.

Perhaps the store did spy on Mrs. Toogood as part of some ethnic profiling. If she was trying to cheat the store, then she should be prosecuted for that. I am sure they would charge her if they could.

If Mrs. Toogood were charged with stealing, at least she would be given constitutional rights of due process, no self-incrimination, presumption of innocence, etc. If convicted, she would do her punishment without the authorities holding her kid and sister as hostage. As it is, she has to throw herself on the mercy of the court because everyone surmises that she regularly beats her kid.

Saturday, September 21, 2002

Another cost to misguided anti-discrimination policies. Title IX has forced many colleges to cancel or cut back sports programs for boys, such as wrestling. Now many colleges have discovered that many more boys than girls want try out for college sports, so the NY Times says that they have abolished tryouts! The term walk-on refers to a college player who made the team as a result of a tryout. They have been rare for a long time in the big sports like Division I football. Now they are getting a lot rarer.

A Bengal tiger broke free from its handler and leaped on top of a 6-year-old kindergartner Friday during a Scotts Valley Christian school assembly, sending screaming, terrified children fleeing the church chapel where the assembly was held. The child ... suffered a 4-inch laceration on his head when the 150-pound, 1-year-old, claw-less tiger, Sima, jumped on his head, Scotts Valley police said. The boy was flown by helicopter to Lucile Salter Packard Children's Hospital at Stanford ...

The news today says that the boy was actually cut by the belt buckle of an overreacting adult. The tiger did not harm anyone.

Update: Here is the zoo's story. There is still some dispute about the facts.

All the 9/11 survivors complaining that they are not getting enough money are getting tiresome. Many of them say they want to sue, rather than accept the extremely generous government settlement. I just don't see why anyone should pay them. The 9/11 incident was not the fault of the airlines or the NY Port Authority or the taxpayers. When a US soldier dies in war, his widow gets a small pension. But these 9/11 victims were not soldiers or involved in any government business. They are just murder victims. I don't think that the family of every murder victim should get a million dollar jackpot. Here is a commentary opposing lawsuits.

eMoo points out that France has passed up California in GDP. Gov. Davis had been bragging about passing France. I am still waiting to hear what Simon would have done about the California energy crisis, or about MTBE, or about Smog Check II, or some of the other major California. I am sure he couldn't possibly be worse than Davis, but I'd like to hear it anyway.

Friday, September 20, 2002

Charlie sends this picture of an armed airline pilot scenario.

Now that popular opinion has given us a federal law suppporting armed pilots, it will soon happen. The objections seemed to come mostly from gun-control nuts who just don't like the idea of anyone with guns, and leftists who wanted only air marshalls to be armed so that there will be an expansion of government power. However the safety arguments for armed pilots were compelling.

WSBT story: "After viewing the tape his statement to me was that the child probably sustained head and neck injuries," said Mishawaka Police Detective Mike Samp Wednesday evening. "And also because of the violent shaking at one point with the hair, that it would not be totally out of the question to look at something as remote as a brain hemorrage."

I believe that this is yet another hysterical overreaction to a minor incident. I've seen the videotape on TV several times, and I think that it is unlikely that the child has any injuries at all. I doubt that the child even has a bruise. There is a point where it looks like the mom strikes the kid in the head, but it doesn't look to me as if much force is used. The shaking appears very mild. I feel sorry for this mom, as she is now the victim of a media frenzy.

Bob says: "The mother looks around to make sure no one is watching before she starts the beating. That proves that she knew that she was doing something wrong."

The mom does look over her right shoulder before the spanking. It is not clear why, but let's suppose you are right that she was checking to see if anyone was watching. I do not think that would be any evidence of guilt at all. Child discipline is normally done in private. If my kid misbehaved in a store, and it warranted some sort of punishment, I would usually not punish her in the store. I would wait until we were in private, so as not to create a scene in the store. It is not that I think that child discipline is wrong, but I do think that it can be rude to discipline a child in a public place.

Toogood's sister, 31-year-old Margaret Daley, who authorities say was with her at the store, was arrested and charged with a misdemeanor count of failure to report child abuse. Prosecutors later added a charge of assisting a criminal. Daley was released Friday after posting $2,150 bond.

According to Volokh, the Indiana statute provides that "an individual who has reason to believe that a child is a victim of child abuse or neglect shall make a report as required by this article."

Something is seriously wrong with our society when a woman is arrested for failing to rat on her sister for spanking her kid. If I were on the jury, I would acquit both women based on what I have seen.

Update: Mrs. Toogood has turned herself in, and the girl is in good condition. The cops will probably convince her that she has to make a full confession if she ever wants to get her kid back.

BTW, the names of some of these characters sound fictitious. Mrs. Toogood spanked her kid. In another alleged child abuse story, the Killpacks of Utah are charged with killing their adopted 4-year-old by giving her too much water to drink.

The Berkman team took the case to the Court of Appeals later that year. This was the first and only time Lessig appeared in court on behalf of a client. "It was one of the better arguments I've ever seen," says Geoffrey Stewart. "He knew all the cases, and there was no point too grand or too trivial to escape his grasp. At a certain point, the level of questioning changed from a classic appellate argument to a dialog of genuine give-and-take." Lessig himself was pleased: "I was nervous before it started, but once it got going it was great fun," he says. ... The verdict was 2 to 1 supporting the government. Strike two. Even so, Lessig got his dissent, from the most conservative judge.

What the article omits is that the dissent was persuaded by an argument in an Eagle Forum amicus brief that Lessig disavowed.

eMoo says that Berkeley (Calif USA) has pulled ahead of Santa Cruz in wacky political moves when Berkeley passed this resolution: "The Council of the City of Berkeley hereby declares that the space 60 kilometers and above the City of Berkeley is a space-based weapons free zone". Hmmm. We are doing our best here in Santa Cruz. Yesterday, Santa Cruz officials were giving out free marijuana at City Hall. The enthusiastic crowd of 1000 supporters included many pet dogs, a pet snake, dancers, drummers, and protesters holding signs including: "DEA Go Away" and "U.S. Out Of Santa Cruz."

A Santa Cruz couple was fined $5000 for cutting down a blue gum eucalyptus true on their property. The trees are non-native and are considered pests.
A local politician said, "A tree is a living being, and every one is valuable. I don't see any reason to discriminate or live in fear of them." [LA Times or blog]

Update: Here is the mayor of Santa Cruz writing about defying federal marijuana laws. He says, "medical marijuana is a cost-effective way to treat people with chronic pain". That may be true, but it hasn't been proved, and marijuana is still illegal under federal law. Maybe these leftists ought to join the movement to limit federal jurisdiction.

George writes: "What's political about those words? There is nothing political about antebellum. The word oligarchy is political, but it doesn't represent a left-wing political system."

Antebellum is a word that left-wingers would use to make fun of white southerners. Right-wingers don't use the term. Likewise, only a left-winger would use the word paradigm. The word paradigm was popularized by leftist academics who want to deny that science has any objective reality.

Oligarchy is a term for a political system, but not one that anyone advocates. It is a term of left-wing derision.

George writes: "How could laissez-faire, nihilism, and totalitarian all be right-wing. Those are different philosophies."

Laissez-faire is right-wing because it suggests that there is some intellectual basis for just letting the rich get richer. Nihilism is a term of derision that a right-wing might use for people who lack fundamental values. Totalitarian is a description of communist governments, with the ideology removed.

The theory that ontogeny recapitulates phylogeny was very popular with leftists because it proved evolution, equate humans with animals, and justified abortion. It has been discredited, but it is still in some textbooks.

Suffragist is a silly word for the list because no one uses it any more. It refers to women getting the vote, and leftists think that was one of the greatest things that ever happened. Likewise, bowdlerize, enfranchise, and hegemony are obscure left-wing terms.

Here is another example of how lawyers have different ethics from non-lawyers. From today's news:

SAN DIEGO -- Just before Danielle van Dam's body was found, David Westerfield's lawyers were close to nailing a deal under which he would have avoided the death penalty by revealing where he had dumped her remains, it was reported Tuesday.
Discussions between the defense attorneys and prosecutors were still under way minutes before Danielle's body was discovered by volunteers Feb. 27, law enforcement sources told The San Diego Union-Tribune.
The sources told the newspaper that defense lawyers Steven Feldman and Robert Boyce were negotiating for a life sentence for the 50-year-old design engineer, a neighbor of the van Dams in Sabre Springs.
The deal would have allowed Westerfield to plead guilty to murder and be sentenced to life in prison without the possibility of parole, the Union-Tribune reported.
Prosecutors were seriously considering the deal when Danielle's body was discovered off Dehesa Road that afternoon, nearly four weeks after she disappeared from her bedroom.
"The deal was just minutes away," one of the sources told the Union-Tribune.

Fox's O'Reilly thinks that this is outrageous because Feldman and Boyce argued at Westerfield's trial that someone else did the murder, even tho they knew all along that Westerfield was guilty. Lawyers just think a murderer is entitled to a vigorous defense.

The jury verdict was eventually death by lethal injection, but there was apparently so disagreement among the jurors. They took about a week and a half to find Westerfield guilty, and about as long to decide on the penalty. Defense lawyer lying almost worked.

Sunday, September 15, 2002

Rep. Zoe Lofgren argues for continuing our mass immigration policy thusly: ``If you have a Linus Torvalds, the Scandinavian inventor of the operating system Linux, are you going to say, `You can't come here?' ''

The poverty of her logic is apparent by transposing the question: If you have a Maximiliano Esparza, a Mexican illegal immigrant accused of raping two nuns and strangling one with her rosary beads in Klamath Falls last week, are you going to say, ``You can't come here?''

Lofgren conveniently misses the point about tightening U.S. immigration policy. It is not about Linus Torvalds. It is about securing our borders against criminals and terrorists; it is about maintaining opportunity for higher education for American students instead of favoring hundreds of thousands of foreigners; it is about showing concern that Americans have jobs in high tech rather than masses of cheaper workers from abroad; and it is about preserving a state from being paved over for houses and strip malls for ever more newcomers.

Saturday, September 14, 2002

Some folks in Louisiana are complaining that they cannot get National Public Radio on their local non-commercial FM radio. One station is playing the Phyllis Schlafly Report instead!

I don't even think that NPR ought to be allowed on any non-commercial stations, because NPR has commercial sponsors. It also has a very annoying left-wing bias. I also don't think that the government should be in the news business. I'd like to cut off tax support for NPR.

Andy writes:

That's a classic NY Times piece. Government, please save us from those Southern fundamentalists!!! You'll see that same theme on a regular basis in the NY Times, in a variety of forms.

What would the NY Times say if the feds started distributing free newspapers in NYC?

Ashcroft deserves kudos for apparently postponing the indictment of IL gov. Ryan until he leaves office. Local press interrogated US Atty in Chicago about this, and he refused to answer.

Jeb Bush shot himself in the foot by running ads against McBride, in an effort to help Reno. Repubs were imitiating Calif. Gov. Davis' ads against Riordan, which presumably helped Simon in the Repub. primary. But politics is not symmetric! Dems can get away with sex scandals while Repubs cannot. Likewise, Dems can get away with interfering with Repub. primaries but Repubs cannot do likewise in Dem. primaries. Bush helped McBride, and may soon have a real fight on his hands as a result.

United Way's website pretends that only 10/1400 local chapters ban giving to the Boy Scouts.
You can bet that many, perhaps all, chapters are being pressured to do likewise. United Way feigns apology over the decisions, claiming it cannot control its local chapters.

In fact, however, nearly 50 local chapters have stopped giving to the Boy Scouts, and it is a growing list. United Way of Morris County is an example not included in the national United Way list.

But United Way of Morris County just announced that it suffered about a 10% drop in non-9/11 donations this past year, even though United Ways on average increased in donations.

Davis is extremely unpopular in Califonia, and started going negative with nasty and dishonest ads about 6 months ago. Simon does not appear capable of getting anyone excited about himself, and he refuses to take a stand on any tough issues. Simon's best chance is to vigorously attack Davis.

Janet Reno has apparently lost her Florida election, and she is complaining about the count and refusing to concede. Florida bought new polling equipment after the 2000 election debacle. But the 2000 problem was more a political problem than a technological problem, and I wouldn't expect fancy technology to make the situation any better.

Reno was a terrible attorney general, and I am glad to see her out of office. Remember Waco? The Ruby Ridge cover-up? Her secret deal to stop appointing independent
prosecutors? Her efforts to ban encryption and increase wiretaps? The deportation of Elian Gonzalez? Ashcroft is a far better attorney general.

Thursday, September 12, 2002

eMoo reports that Sen. Feinstein was embarrassed to wear a US flag pin in Europe. Well, I am embarrassed to have Feinstein as my senator. She says the main problem is that the US might attack Iraq while leaving the "Israeli-Palestinian conflict" unresolved. That conflict might still be unresolved in 500 years.

Wednesday, September 11, 2002

Justice Thomas' influence on the Court has been mostly in his concurrences and dissents, as in the voucher decision (where he observed that the 14th Amendment should not used to restrict liberty).

But Justice Thomas has also written 92 opinions for the Court. I compiled the list.

I wrote an article about Justice Thomas that has not been published. Maybe I should take Julie's suggestion to write a book instead, on Thomas' work.

Several in the list are very important decisions, but I hadn't realized that Thomas wrote them. Two of the most important entailed disagreements with Scalia: Christensen, where Thomas said agency opinion lacks force of law, and Bajakajian, where Thomas prohibited the feds from seizing hundreds of thousands of dollars based on a mere currency reporting violation.

John writes:

Thanks for the list. Too bad it doesn't include links so I can click through to read them. However, 81 of the opinions have links here, along with 53 concurrences, 60 dissents, and 13 other opinions. The missing opinions are numbers 1, 2, 3, 4, 6, 43, 67, 89, 90, 91, 92.

I agree that where Thomas deviates from Scalia, Thomas is usually right. Another example is McIntyre v. Ohio Elections Commission (1995), where Thomas showed that laws against anonymous political speech are inconsistent with the First Amendment.

I agree too. One possible explanation is that Scalia is more pro-institution, pro-government than Thomas. Scalia is an Italian Catholic, while Thomas obviously is not.

Libertarians can be preferable to conservatives as judges. Rehnquist sometimes renders horrible opinions because of his pro-government bias.

Another possible reason Thomas is better than Scalia is that Thomas picks mostly conservative clerks, while Scalia and Rehnquist do not.

Liberals generally aren't interested in debating the merits of issues. They do better by keeping people away from the substance.

Andy writes:

One only has to go back to June 17, 2002 to find an awful, pro-govt opinion by Rehnquist. Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Vill. of Stratton, 122 S. Ct. 2080.

Rehnquist dissented from an 8-1 decision that invalidated a permit requirement for door-to-door solicitation. I can't imagine having to get a town permit to knock on a few doors, something I've personally done.

Rehnquist's main reason for backing the regulation? Newspaper clippings about the murder of the two Dartmouth college professors in their home:

"A recent double murder in Hanover, New Hampshire, a town of approximately 7,500 that would appear tranquil to most Americans but would probably seem like a bustling town of Dartmouth College students to Stratton residents, illustrates these dangers. Two teenagers murdered a married couple of Dartmouth College professors, Half and Susanne Zantop, in the Zantop's home. Investigators have concluded, based on the confession of one of the teenagers, that the teenagers went door-to-door intent on stealing access numbers to bank debit cards and then killing their owners. See Dartmouth Professors Called Random Targets, Washington Post, Feb. 20, 2002, p. A2. Their modus operandi was to tell residents that they were conducting an environmental survey for school. They canvassed a few homes where no one answered. At another, the resident did not allow them in to conduct the "survey." They were allowed into the Zantop home. After conducting the phony environmental survey, they stabb! ed the Zantops to death. See ibid."

So two profs fell for some Columbine-killer types who were posing as environmentalists. The profs invited them into their home and spent time with them. This is statistically insignificant and, at any rate, the solution for those worried about this is not to let enviro-wacko strangers into their house!

Yes, it is pretty silly to think that the city granting permits to knock on doors is a good solution to random killers tricking residents into opening their doors.

John writes:

I disagree that libertarians can be preferable to conservatives as judges. Libertarians invariably misrepresent the issue as government versus no-government. In reality, as the following case illustrates, the issue is national (federal) government versus local (state) government.

But the question is what gives the federal government the power to overrule local government on such a purely local matter as door to door solicitation?

If people in a local community (like Ladue, Mo.) want solicitors to register at the local police station before knocking on doors, what's wrong with that?

It is no answer to say that murders by door-to-door solicitors are "statistically insignificant." How many such horrible murders must a community endure before enacting reasonable preventive measures?

I could understand if some town wanted to ban commercial solicitations altogether. But I don't see how this law would reduce any crime. Rehnquist says that maybe someone would have checked whether the murderers had a permit. The murderers were claiming to be doing an environmental survey for the school. It seems just as likely, and more useful, if someone had checked with the school to see whether the survey was legitimate.

John writes:

Roger is entitled to his opinion that a local rule requiring door to door solicitors to register with the police is not "likely" to reduce crime, and that alternative measures would be more "useful."

He may be right, but others disagree.

The question is who has the final say? A local city council that hears from actual citizens, or a federal judge sitting in his ivory tower?

Libertarians say that letting the local city council decide such questions is somehow "pro-government." They say the principles of limited government dictate letting the federal judge decide.

That's nonsense; the judge is just as much government as the council.

So what would you do? Reverse that long line of opinions that say that Jehovah's Witnesses can knock on doors? Would you apply an intermediate scrutiny test?

The permit system just doesn't make any sense to me. The city wasn't doing any background test or authenticity test on the canvassers. I've had door-to-door salesmen come claiming to have some sort of verifiable credential that they are authentic, bonded, above board, or whatever. That is a lot more useful than just city hall keeping some names in a book. It sounds like the city just wanted to find a way to harass people who knock on doors.

Andy writes:

John wrote re: anti-solicitation rule: "The question is who has the final say? A local city council that hears from actual citizens, or a federal judge sitting in his ivory tower?"

The only thing a judge can do is uphold or invalidate the regulation. The local city council and police retain dozens of more effective options for increasing safety in the neighborhood, if that's their goal, such as warning citizens against letting teenage male strangers into their home. Roger's right that the Dartmouth couple could have checked with the school more effectively than the police station.

Our preference for local over federal government is just one consideration. Lots of local regulations, such as property regulations, are offensive to conservative principles. Yes, I do want the courts to invalidate liberal laws. I want them to invalidate the Mickey Mouse copyright extension, for example.

It's a myth that conservatives support a "right to be left alone," as Grover Norquist trumpets. Ladue residents probably do not like being intellectually challenged by people they disagree with. Well, that's an essential part of a free society. It's the basis of the free speech clause, and the basis of free enterprise. Ladue can no more require door-to-door salesmen to register than it can require its gas station attendants or supermarket shoppers to register.

Liza points out that Ladue, and many other cities, require businesses to register. Religions don't have to.

Tuesday, September 10, 2002

TUCSON, Ariz. (AP) - Illegal immigrants crossing into the United States in southern Arizona are suspected of causing eight major wildfires this year, which have cost taxpayers $5.1 million to fight. In an already busy fire season, the fires charred 68,413 acres - about 108 square miles - according to an Arizona Daily Star review of public records and interviews with land managers published Monday. Only fires bigger than 100 acres were included in the analysis, and officials said immigrants caused many smaller blazes that were quickly controlled.

Andy raises the issue of whether homeschooling is better for boys than girls. I think that the school system is tilted in favor of girls over boys. Girls are more likely to be able to sit still for hours, do what they are told, and learn at a carefully structured rate. Homeschooling makes more sense for boys. Andy writes:

Joe's statistic about his local private school MICDS (11/15 nat'l merit semifinalists are girls) is interesting. It shows that wealthy girls in school make the academic top 1% more frequently than wealthy boys. I don't doubt it. Maybe that statistic works independent of wealth too.

But it's a very different story, I think, for girls who struggle in or dislike school. Recent data, for example, show that teen pregnancy is correlated to how close a girl is to her mother. School is a disaster for many girls who are not comfortable there.

It's possible that homeschooling is optimal for many boys in grade school, because they have trouble sitting still at a young age, but for many girls in high school.

Tom reports that Anheuser-Busch is monopolizing the beer market in St. Louis. It has muscled Schlafly beer out of County fairs and similar events. As a result, you cannot even buy German-style beer at German-American festivals.

A spokesman for the Justice Department, Jorge Martínez, said fingerprints and photographs would automatically be taken of any citizen of Iran, Iraq, Syria, Sudan and Libya. In 2001, 44,000 student, business and other temporary visas were issued to visitors from those countries, which are five of the seven countries designated by the State Department as sponsors of terrorism. (The other two are Cuba and North Korea.)

I am usually a privacy advocate, but I had to get fingerprinted to get a California drivers license. The feds should track terrorism suspects at least as well as they track law-abiding citizens.

Stolen election dept. Partisan Democrats are frequently complaining that the 2000 presidential election was stolen. At least the Republicans aren't constantly whining about how the Democrats stole the election for control of the US Senate:

Democrats were allowed to take Ashcroft's Senate seat from Missouri, even though all they had were sympathy votes for a dead candidate.

Sen. Jeffords was allowed to join the Democrats, even though he was elected to be a Republican.

The Nov. special election in Missouri may have its results delayed in order to keep the Republicans from recapturing the Senate. (Thanks to Volokh.)

Monday, September 09, 2002

I previously argued against confidential legal settlements. A Catholic Church lawyer defends them on these grounds:

Many claims are settled without ever coming to court. Should private parties not be allowed to resolve their differences amicably and privately?

The overwhelming majority of confidentiality provisions make the settlement amount confidential, but not the fact of the claimant's allegations of sexual abuse.

Many victims desire confidentiality in a settlement, just as they do in filing a lawsuit as "John Doe," because the matters they have raised are intimate and sensitive. A rule prohibiting the confidential settlement of claims may deter victims of abuse from coming forward.

Confidentiality agreements do not prohibit parties from communicating with law enforcement authorities or from testifying in court. They are aimed instead at keeping the parties off "Jerry Springer" and the like.

I don't believe (2). Every time I hear of one of these confidential settlements, the guy says he is legally prevented from commenting. And (4) is also misleading. The agreements are intended to keep the matter out of course. They cannot prevent someone from testifying, but they can make him forfeit money if he does.

To answer (1), I think that allegations of serious crimes should be turned over to the police and other authorities, and not settled privately. A private settlement just becomes a crooked deal between an extortionist and a felon that is contrary to the public interest.

Suppose that I have some evidence that my neighbor is the anthrax mailer, and I offer to keep quiet in exchange for a $100k payoff. Would that be a case of private parties resolving their differences amicably and privately? No, it's blackmail, and it is a serious crime. I am allowed to report the guy, or to keep my mouth shut, but I cannot ask for money in exchange for keeping quiet about a crime. The reasons are clear -- we don't want blackmailers, and we don't want anthrax mailers going free.

In my view, the confidential settlements of alleged sex abuse are similar to ordinary blackmail. It shouldn't be allowed.

Andy writes:

You criticize confidential settlements, likening them to blackmail. But you don't complete the logic of his complaint: the persons most responsible for the vices of confidential settlements are the plaintiffs and their attorneys. They are perfectly free to refuse confidentiality, but only agree to it to maximize their payoff. There is no faulting the defense attorneys for seeking confidentiality as a condition of settlement.

It is usually the defendant who wants the confidentiality, and is willing to pay for it. But it doesn't matter, because if they come to agreement then it is in both their interests. You are correct that in a blackmail situation, both sides profit by confidentiality. I fault the attorneys because they are the agents of blackmailers, and are often assisting in covering up serious criminal allegations and paying off a blackmailer.

John writes:

I don't know why Andy blames the plaintiffs for confidential settlements. Clearly, the bishops bear most of the blame for paying $1 billion in hush money. Even where someone is clearly engaging in blackmail (like Archbishop Weakland's accuser), I still fault the bishop for paying blackmail out of church funds.

I can't figure out his comment either. No one should be allowed to either pay or receive money for the purpose of covering up a felony.

Andy writes:

There are reasons to criticize American bishops, but not for these confidential settlements. The Church was right to demand confidentiality as a condition of settlement, and should continue to do so. Every defendant does likewise, and rightly so. Neither John nor Roger suggest a plausible alternative.

John seems to think the Church's $1 billion in payments was too much. But single jury awards can reach $100 million. I think the Dallas archdiocese, following John's implied advice, went to trial and got hit with something like a $70 million adverse judgment. State Farm Insurance is before the Supreme Court this term on a $165M judgment merely for delaying in indemnifying a policyholder in a car insurance case, with no real damages. Many think the Supreme Court should bail out State Farm at this late hour, but I don't.

Roger seems to think that companies should be prosecuted for negotiating confidential settlements. But every settlement of alleged fraud, for example, is a potential felony. So Roger's beef is with every publicly traded companies, and many private ones too. Good thing Simon never settled, eh?!

No, not every defendant pays blackmail. Honest businesses notify the police when someone alleges rape or some other serious crime. Only a crook would pay money to cover it up. Maybe we need laws limiting liability, but that is another matter. If Simon behaved criminally, and paid the plaintiff to burn the evidence, then I'd criticize him. But he did neither.

John writes:

If no one should be allowed to pay his *own* money for the purpose of covering up a felony, then "a fortiori" (all the more so) no one should be allowed to pay someone else's money for that purpose.

The key fact to keep in mind is that the $1 billion the bishops gave away was NOT THEIR MONEY. It was money dedicated to religious and charitable purposes.

The bishops are merely trustees. A legal maxim says that a trust will not fail for want of a trustee. If a bishop is criminal or negligent, he can be removed from office, but that should not jeopardize church funds.

Bear in mind that no court has ever held that church funds (charitable trusts administered by bishops) may legally be seized by plaintiffs. Bishops have used their control over these funds to make secret payoffs without any determination of legal liability.

Andy writes:

Roger replied, "You say that, but why?"

Because (1) it is freedom of contract, which I favor, (2) the settlement itself is no one else's business, and (3) it minimizes frivolous copycat suits.

John and Roger then shift their complaint away from confidentiality, and claim that the Church overpaid or paid from funds that should not have been used to settle claims. And when the mega-jury-verdicts are inevitably entered against the Church, e.g, (1) Simon case, (2) State Farm case, and (3) Dallas Archdiocese case, then what do John and Roger say? Merely that the jury got it wrong, and an appellate court should reverse it? And if it doesn't?

I don't think the Supreme Court should reverse the $165M State Farm verdict, even though it was ridiculous. Do you?

I do not think that bribery, blackmail, and extortion are just innocent private contracts. Tolerance of those things encourages criminal behavior. Here is a legal essay about it. I also agree with John that the Catholics bishops are paying with money that is not authorized for that purpose. I don't think that the payoffs minimize frivolous copycat claims either. In the last year, we have seen an avalanche of frivolous claims against the Catholic Church.

Encarta's ERA article was biased and misleading in several respects. For example, there was never a popular demand for ERA (or its extension), which repeatedly lost in referenda (thanks in part to Stop ERA). ERA was driven by the media and the liberal elite, at the zenith of their power.

Roger wrote, "The article said: arguing that the ERA would bar any restrictions on abortion. I wouldn't object if it said: arguing that the ERA would bar any restrictions on govt abortion funding. Those issues are very different, in the minds of many people."

I doubt "many voters" draw Roger's fine distinction. The distinction only makes sense by ignoring pivotal issues concerning use of public hospitals and medical school training and Planned Parenthood and marketing in public fora like subways trains and schools.

Demand for abortion depends almost entirely on its promotion by government, in one form or another. Abortion demand among the masses almost disappears without government promotion.

John writes:

There are restrictions on public funding of abortion. The two main federal restrictions were upheld in Harris v. McRae (1980) and Rust v. Sullivan (1991) by 5-4 votes. In addition, a majority of states restrict public funding of abortion.

ERA would overturn all these restrictions. In states that have a state ERA, state courts have overturned funding restrictions.

I'm not surprised that Roger thinks abortion and public funding of abortion are "very different" issues - and that he thinks "many people" agree.

However, I would point out that virtually all scholars and advocates of legal abortion (e.g. Ruth Bader Ginsburg) believe they are one and the same issue. All pro-abortion groups believe that public funding is essential to abortion rights. There is no "pro-choice" spokesman who is willing to accept any restrictions whatsoever on public funding of abortion.

Their fundamental axiom is that abortion is a legitimate medical procedure no different from appendectomy. They don't want abortion relegated to separate clinics where people have to pay cash. Their goal is to have abortion offered wherever any medical services are offered, which implies public funding (since virtually all medical providers receive public funds).

Saturday, September 07, 2002

There is a new book about J. Robert Oppenheimer, the director of the US atom bomb project during WWII. It claims to have found a smoking gun proving that was a secret member of the Communist Party. Oppenheimer was the left-wing poster boy for the evils of McCarthyism. It will be interesting to see if the leftists still defend him. The NY Times says, "The new book asserts that Oppenheimer was a member not only of the party but of a secret cell at the University of California that helped set policy and write party literature."

Here are 1954 documents on the decision to revoke Oppenheimer's security clearance. There was a strong case against him then, although no proof that was a Communist. More documents are here.

Gumma writes: "Of couse Oppenheimer was a Communist. Whether he was a "card carrying" Communist is rather irrelevant. He had a wife, brother, mistress and other associates who were real Communists. Lots of new info incriminates him."

Not only did Enron and WorldCom cook the books, the Clinton administration substantially exaggerated corporate profits. It was only corrected after the 2000 election. Bob Novak suggests that it might have been a deliberate political ploy; the charge is rebutted by a Wash. Times op-ed and SpinSanity.

This should be a bigger story. I do not find the rebuttals persuasive. They say that Commerce Dept. data do not have much effect on the stock market. I doubt that. The stock market pays very close attention to official govt statistics. There govt statistics made the economy look a whole lot better than it was. Maybe these bad Clinton administration numbers are partially responsible for the bubble and crash, just as phony numbers from Enron and WorldCom contributed to the problem.